KNOX COUNTY. HON. MARY BETH LEIBOWITZ, JUDGE. (Second Degree Murder).
Joe B. Jones, Judge, Concur: (Not Participating) Jerry Scott, Presiding Judge, Walter C. Kurtz, Special Judge
The opinion of the court was delivered by: Jones
The appellant, Charles N. Howell, was indicted for the first degree murder of his wife, Mozella Howell. Following a jury trial, he was convicted of the lesser included offense of second degree murder and sentenced to twenty-one years with the Tennessee Department of Correction as a Range I standard offender. In this appeal as of right, he raises the following issues:
(1) Whether the evidence presented at trial was sufficient to support a verdict of second degree murder?
(2) Whether statements made by the victim just prior to her death regarding her fear of the appellant were properly admitted at trial under the "state of mind" exception to the hearsay rule?
(3) Whether the trial court properly considered the enhancement and mitigating factors in arriving at a sentence of twenty-one years?
On Monday afternoon November 30, 1992, the appellant turned himself in to the Knoxville Police Department for shooting and killing the woman who had been his wife for twenty years. According to Tonya Ivory, the victim's daughter, her mother had driven to her apartment and honked the horn around 8:15 that morning. After Ms. Ivory got into the parked car with her mother, the victim told her daughter that the appellant planned to kill her. The victim said, "I don't know if it is going to be the end of this week, or the end of this day, I don't know, I got a feeling he didn't go into work. . . . Look, Charles is going to kill me. I am not asking you to believe it. I'm asking you to accept it. The only way that I am going to live is if Charles drops down on his knees and asks God for forgiveness, and take [sic] killing me out of his heart, but he is beyond that." The victim made plans to go with her daughter to secure an order of protection.
After this brief conversation, Ms. Ivory heard an approaching vehicle and recognized it to be the car of her stepfather, the appellant. Ms. Ivory "said a few choice words" to the appellant, and, upon realizing that he had a gun, she urged her mother to leave. However, the victim had trouble starting her car, and as Ms. Ivory was going inside for help, she saw the appellant shoot her mother. Several persons who lived in the apartment complex also witnessed the crime in part. One, an off-duty police officer, testified at trial that he rushed outside after being awakened by several gunshots. Upon seeing the appellant, the police officer held a gun on him and ordered him to drop the gun he had, but the appellant disobeyed and left in his car. Another witness, a maintenance worker at the apartments, looked out of his window after hearing a gunshot and saw a man at the driver's side of the victim's car. He testified that this man then got in his car, pulled forward, got out of the car, shot more times into the driver's side of the victim's car, and lastly, walked around to the passenger's side of her car before departing. Linda Minton, another neighbor noted that she saw the appellant walk from one side of the victim's car to the other and then slowly drive off as though he were not in a hurry. A final witness, James Odell, rushed out onto his sun porch when he heard the gunshots. He testified that a black man was yelling into the car, "get out of the car, bitch, get out of the car, I told you, get out of this car, I want to talk to you, get out of the car." He then saw the man fire three shots into the driver's side of the victim's car before leaving.
Some time prior to Mozella Howell's death, she had become acquainted with Bruce Wright, an inmate at the Northeast Correctional Center in Mountain City, Tennessee. According to the victim's daughter, Ms. Ivory, the victim met Mr. Wright through the appellant's and her son, Janardo, who was imprisoned in the same facility. Ms. Ivory testified that the relationship began as part of the victim's prison ministry and that her mother did not actually meet Mr. Wright in person until earlier that November. Ms. Ivory said that she was only aware of two letters that her mother received from Mr. Wright which came to Ms. Ivory's address. The letters, which were admitted into evidence, indicated that the victim and Mr. Wright were romantically involved and had plans for a future together.
Apparently, the appellant first became aware of his wife's relationship with Mr. Wright when he discovered some mail that she had received from him on the Saturday morning before the murder. Prior to this time, the appellant had expressed concerned over his ever-increasing phone bill which consisted primarily of collect calls from Mountain City, Tennessee. However, he had believed that all of the calls were being made by his son Janardo. Though the appellant could not read well, his suspicions were aroused when he noticed that the letter referred to his wife as Mozella Wright and mentioned love. He found a second letter in his wife's purse in which he read the words, "I want to be your wife" and "Bruce, I love you. I am trying to get rid of Charles, but the plan is not working." The appellant testified that the letters made him "hurt on the inside." When he confronted his wife, she tore the letter into pieces and acted unconcerned.
Subsequent to his discovery, the appellant and the victim spent Saturday afternoon shopping for some items to send their son and for a ring for the victim's upcoming birthday. According to the appellant, his wife did not stay in their home on Saturday night nor did he see her at all on Sunday. On Sunday, the appellant attended church and talked with two pastors about his marital problems. On Monday, the appellant drove to work as usual, but because he was ill with a cold, he soon returned home. As his wife was not at home, he decided to go to Ms. Ivory's to find her. He said that he took his gun because he "didn't take no chances on Tonya [Ivory]" who had cut the appellant in the past. The state pointed out that this incident had occurred over ten years earlier when Ms. Ivory was thirteen years old. Also, the appellant admitted on cross-examination that he did not always carry a gun when he visited Ms. Ivory.
The appellant testified that he remembered very little about the shooting. He did recall that, when he got out of the car and began walking over to talk with the victim, Ms. Ivory ran toward him with her hands up as though she were going to attack him. He did not remember if he shot at Ms. Ivory. He did not even remember shooting the gun. A specialist from the Knoxville Police Department testified that he recovered two bullets from the driver's side of the car in which the victim was killed. The doctor who performed the ...